Citizenship and the marginalities of migrants
David Owen
What is owed to migrants by receiving states, and what do migrants owe to these states?
This question occupies an increasingly central place in debates within political theory.
However, addressing this question requires at least two fundamental methodological
choices.1 The first concerns how much, if any, of the normative structure of the current
political order one chooses to treat as background conditions for the purposes of the
enquiry. The second concerns the normative orientation adopted, that is, for example,
whether one chooses to work within the terms of a specific theory of justice or of
freedom or, alternatively, adopts a more catholic approach. These choices are related in
that the degree to which one builds features of the existing normative architecture of
politics into one’s account has implications for how much appeal one can make to, for
example, widely held democratic norms (norms which, typically, can be supported on a
variety of different theoretical grounds and, hence, the adoption of which need not
require one to commit oneself to a specific theory). It is important to be explicit about
these choices for two reasons. The first is that they specify what the argument is – and is
not – committed to doing. The second is that it helps to clarify the advantages and
limitations of the approach adopted. For these reasons, I will introduce the argument of
this essay by situating it in relation to these choices before laying out its structure.
The approach adopted in this essay holds in place the normative presumption that states
have a general entitlement to regulate their own border regimes in ways compatible with
respect for basic human rights, where this includes their entitlement to limit their own
authority to regulate their border regimes (for example, the establishment of a right of
free movement for citizens of EU member states within the territory of the EU), and
concomitantly, to construct normatively consequential distinctions within the general
class of migrants. It does so in order to investigate the legitimate forms of state practice
towards migrants within such terms. The advantage to this approach is that it starts from
a set of presuppositions that are widely held by states and that it can provide reasonably
determinate guidance with respect to the duties that democratic states owe to migrants
and that migrants owe to democratic states under such conditions.2 It should be noted,
however, that this choice does not come without consequences. Thus, it brackets
questions such as whether states should be entitled unilaterally to regulate their own
borders and, of perhaps more immediate salience, whether states should be entitled to
offer distinct conditions of entry and residence to migrants. These are important
questions. Indeed, it will become apparent that such questions cannot be fully bracketed
in our enquiry. This does not mean, however, that it is pointless or mistaken to try to get
as far as we can without entering the more controversial and contested waters that such
questions inhabit. Rather, it will make explicit the points at which the presuppositions
that serve as the background for this approach are thrust into the foreground and, hence,
become the necessary focus of normative attention.
In adopting this stance towards the normative structure of our current political order,
this approach also adopts a relatively catholic approach to the normative issues under
investigation drawing on widely held understandings of national citizenship and of
democratic norms. The orientation adopted in this essay deploys the concept of civic
marginalisation as an analytic lens through which to address the conditions of legitimacy of
the conduct of democratic states towards migrants under the basic presumptions of the
legitimate exercise of state agency that are being taken as background givens for the
purposes of this argument. By ‘the civic marginalisation of migrants’, I refer to the
phenomenon of being (or becoming) marginal relative to the abstract norm of equal
membership in the democratic state as that norm is concretely instantiated in the figure
of the national citizen. The rationale for adopting the lens of civic marginalisation is,
firstly, that it allows us to situate state-differentiated types of migrant in relation to the
norm of national citizenship in a way that clarifies the normative differences at stake in
such differentiations and, second, that it enables us to attend to the legitimacy and
significance of state practice in differentiating between migrants in terms of their access
to citizenship. The focus of the former is on duties to, and rights and duties of, migrants;
the focus of the latter is on the availability and terms of routes to national citizenship for
migrants. It is, I will argue, important to take these two aspects of the civic
marginalisation of migrants together because they are related in ways that are normatively
consequential with respect to the duties of the state. The state may have special duties to
migrants who are not owed a route to national citizenship in virtue of the vulnerability to
which they are exposed by this presumptively justifiable condition of civic
marginalisation.
Given this approach to the topic, the argument will be structured in the following way. I
will begin by addressing the availability and terms of routes to national citizenship for
immigrants, before turning to the topic of the duties to, and rights and duties of,
immigrants, and, finally, concluding with critical reflections on the advantages and
limitations of the approach exemplified in this argument.
I. Routes to National Citizenship
Permanent Residents
Those migrants who are lawful habitual residents and enjoy (or are in the process of
acquiring) the status of permanent residents are widely held by democratic theorists of a
variety of theoretical persuasions to count as ‘citizens in the making’ in David Miller’s
apposite phrase (Miller, 2008a: 195). After a specified temporal threshold of residency is
passed, it is argued, variously, that citizenship should be automatically bestowed on them
(Carens, 2005; Rubio-Marin, 2000), that they should enjoy an automatic entitlement to
citizenship if they choose to apply (Baubock, 2009) or that they should possess an
automatic entitlement to apply for citizenship which may be granted subject to satisfying
a test (of some kind) that bears on their identification with, or disposition and capacities
for identifying with, the political community (Miller, 2008b; for an overview, see Seglow,
2008).1
The most austere argument for this conclusion can be drawn from Dahl’s ‘principle of
full inclusion’: ‘The demos must include all adult members of the association except transients and
persons proved to be mentally defective’ (Dahl, 1989: 129), where ‘adult members of the
association’ refers to ‘all adults subject to the binding collective decisions of the association’ (Dahl,
1989: 120). In the context of a democratic polity characterised in significant part by
authority over a territorial jurisdiction, Dahl’s account implies that any competent adult
who is habitually resident within the territory of the polity and, hence, subject to the laws
and policies of its government is entitled to full inclusion within the demos. Such an
argument can be taken to underwrite Walzer’s claim that the denial of full political rights
to legally-admitted habitual residents amounts to citizen tyranny (Walzer, 1983: 55).3 This
1
In this essay, I will adopt the presumption that the sole route to full political rights is through
acquiring national citizenship. Elsewhere (Owen 2011) I have argued that it is plausible to draw a
distinction between political membership and national citizenship but that suggestion is both
controversial and, not unrelatedly, at variance with widespread state practice in which the symbolic and
substantive link between (resident) citizens and political rights is generally (albeit not universally)
taken for granted. Since I am trying to remain reasonably close to existing practices in this essay, I will
consequently bracket this proposal for the purposes of this argument.
argument is supplemented in Caren’s and Rubio-Marin’s social membership principle by the
additional point that, as a general rule, habitual residents become members of society in
the sense of forming important ties and attachments within this society, and hence
coming to identify a significant range of their interests with their membership of this
society such that this membership serves a central locus for their lives and, consequently,
it would be unjust to deny them membership of the political community as the body
through which society reflectively acts on and governs itself. Whereas Dahl’s argument
bears on national citizenship in respect of subjection to a regime of rule, this
supplementation bears on national citizenship as membership of a political community
and provides reasons to be confident that, in general, such membership will be of noninstrumental value to persons who have practically committed themselves to living their
lives within this society. Baubock’s stakeholder principle which proposes that those
‘persons and only those persons have a claim to citizenship in a particular political
community who (a) depend on that community for long-term protection of their basic
rights’ and/or ‘(b) are or have been subjected to that community’s political authorities for
a significant period over the course of their lives’ (Baubock, 2009: 479) similarly
supplements Dahl’s austere argument by directly adducing the identity-forming
dimension of inhabiting a polity in a way that addresses national citizenship as
membership of a political community.4
These liberal egalitarian positions contrast in some respects with the liberal nationalist
stance which focuses on the integration of permanent residents into a national
community and asserts the defensibility of ‘the policy … of making access to citizenship
conditional on passing a test, that requires, for example, a working knowledge of the
national language, and some familiarity with the history and institutions of the country in
question’ (Miller, 2008b: 385)5 on the grounds that citizens are required to undergo such
education and the incentives that migrants have to acquire this education may be variable
and insufficient to secure their provision. In one respect the grounds that Miller adduces
would appear only to justify the requirement that immigrants undergo compulsory
language training and civic education, a position which liberal egalitarians can also
endorse (alongside exemptions from such classes for those who show, perhaps through a
test, that they do not require them), but I take it that the unstated (and contestable)
premise is that a test is required to ensure that people attending such classes genuinely
engage with them.
The underlying motivation of the liberal nationalist position is not hard to understand
since it is plausibly the case that the stable reproduction of a democratic state oriented to
a politics of the common good requires that many, even most, citizens regard
membership of the political community as non-instrumentally valuable. However, both
the social membership and stakeholder principles provide reasons for thinking that
persons who satisfy Dahl’s all-subjected requirement are likely to stand, or come to stand,
in non-instrumental relationship to the political community. The social membership
principle points to the normative salience of the fact that permanent residents will
typically form significant ties to other members of society and an attachment to this
society in general as the locus of their lives. The stakeholder principle directs its attention
to the identity-constituting dimension of being subject to the polity and, thereby, to the
notion of a shared fate. In this respect, both acknowledge the significance of this aspect
of national citizenship. The crux of the disagreement is, thus, whether it is justifiable to
discriminate within the class of permanent residents on an individualised basis through
recourse to citizenship tests.
While it is plausible that liberal egalitarians may accept accelerated access to national
citizenship for those who can pass a citizenship test, what they reject is that you can
make access to the legal status of citizenship fully conditional on passing a test. On this
liberal egalitarian view, you can legitimately expect that permanent residents will learn the
relevant vernacular language and acquire the salient practical knowledge needed to
participate in civic life, and you can require them to attend publically funded classes that
attempt to provide them with these skills, but to make access to citizenship dependent on
satisfying a test is to commit a basic injustice against those denied citizenship on this
basis. It condemns them to the abject political state of perpetual subjection to ‘citizen
tyranny’ on the basis of the fact that they fail to meet a stipulated threshold of linguistic
competence and political knowledge, where what this entails practically is that the higher
costs of effective civic engagement for them (i.e., dependency on translation by, and the
practical political knowledge of, others) are taken to justify denying them a right to civic
engagement. But the fact that the costs of exercising a right and fulfilling a duty may be
higher, even significantly higher, for Alf compared to Ben does not provide good
grounds for denying the right to Alf. This is especially so if we adopt an integration
regime that cultivates the capacities for, and disposition to, civic participation through
widening opportunities for participation and increasing incentives to do so in ways that
lower the costs for Alf.6 Such an integration regime can provide the basic reassurance
that the liberal nationalist seeks without requiring that individual law-abiding migrants
who have become permanent residents are denied citizenship. Thus, I conclude that
habitual residents should be automatically entitled to citizenship after a specified period
of residence.7
Short-term/temporary contract workers and students
Workers who are admitted on temporary contracts or students who are admitted to
educational programmes which do not approach the norm for inclusion stand in contrast
to habitual residents with (or in the process of acquiring) the status of permanent
resident in that migrants with time-limited visas are not prima facie entitled to a route to
citizenship any more than tourists are. Short-term and habitual modes of residency are
different relationships which construct distinct webs of rights and obligations between
the state and migrant. This does not mean that temporary migrants cannot be permitted
the option of converting their status to that of permanent residents but it does, I think,
rule out their access to citizenship in the absence of taking up this option and meeting
the relevant requirements. It does so because the period of residence required for access
to national citizenship is best conceptualised as the period required to establish what
Dahl would refer to as ‘non-transient’ status and, consequently, although the state may
choose to adopt a shorter period than the EU average of 5 years (such as, for example,
the choice of 1 year by New Zealand) for access to political membership, this simply
determines the relative contrast between the categories of transient/short-term and nontransient/habitual residents. What counts as ‘short-term’ or ‘temporary’ is determined
relative to the political rules on access to citizenship for habitually resident non-citizens
in a given state. This does not mean that we cannot specify reasonable upper and lower
limits to current state practices which should support international norms governing
these practices (I would generally argue that a norm of 5 years, plus or minus 3 years
represents a defensible specification of such reasonable limits), but it does entail that we
cannot specify what counts as ‘short-term’ as a determinate period of time in abstract
from the political context being addressed.
What of conditions in which a short-term worker gains a further short-term contract in
the same country of residence (even if following a brief period of absence from the state)
such that the period of (more or less continuous) residence passes the threshold for the
inclusion of habitual residents? Should we count the period of residence as starting again
with the contract renewal, or as continuous across contracts? This question arises
because, in contrast to the habitually resident non-citizen, the short-term worker is
admitted as someone engaged on a project with a specified end and, then, re-admitted on
another project with a specified end. In general, I think that this does make a difference
in that when the state admits ‘voluntary’ migrants for an open-ended period, the
relationship between state and migrant is conceived as potentially permanent, whereas in
the case of the short-term worker or student, each of their serial stays has a contractually
agreed and specified purpose with an endpoint. The temporary migrant lives in society
with the presumption that they will be required to leave; the habitual migrant with (or
acquiring) permanent residency status lives in society with the presumption that they will
not be required to leave. These distinct conditions of social life will almost inevitably
affect the depth and extent of the ties to society (rather than individuals) that these
differently situated migrants enjoy. In this respect, I think that the stress of the social
membership argument on a standard period of time (Carens, 2005; Carens, 2008) has a
tendency to suppress the point that, from the standpoint of social ties (rather than that of
subjection to law), time is being used as a proxy for integration.2 The problem is that the
adoption of a standard period of time as a proxy for integration across different classes
of lawful migrant relies on the presupposition that the migrant’s relation to the society in
which they reside is independent of the temporal horizon in terms of which migrant’s
experience, and reflect, on their presence in society. I don’t see what speaks in favour of
this presupposition. This is admittedly a matter for sociological investigation but if it is
2
There are, of course, a range of other objections that can be made to using time as a proxy for
integration since a habitually resident migrant may not integrate into society (Seglow 2008) but the
issue here is the framing of a general rule and, given the general tendency of people to integrate (often
in circumstances that are far from ideal), it seems reasonable to adopt a rule in which time serves this
purpose (with qualifiers such as not committing serious criminal offences). The alternative is to adopt
an integration test of some kind but the design problems raised by such a test are significant.
the case that there is a real difference in what might be termed the ‘time-integration
coefficient’ between those with temporary and permanent residency statuses, what
implications follow? The first is that treating the periods of residency as continuous, that
is, as if the short-term and habitual migrant were relevantly identical, is not required by
justice. However, second, it is also unjust to treat each consecutive period as a distinct
and separate period as if the short-term migrant who is admitted for a given number of
consecutive periods were equivalent to the same number of short-term migrants, each of
whom is admitted for a single period. The hypothetical presumption that the temporality
of integration is different for temporary and permanent residents does not imply that the
temporary resident does not integrate into society, only that one cannot reasonably
expect that their integration over a given period of time to have the same depth and
scope as the typical permanent resident over the same period. In this context, just
treatment of the temporary migrant requires that we adopt the view that a (more or less)
serial short-term migrant not merely be permitted to switch to permanent resident status
but, after a specified period of time, entitled to do so with their existing years of
residence counting at a discounted rate (where the discount is a function of the ratio of
the two time-integration coefficients). Consequently, the temporary worker who remains
(more or less) continuously present for the appropriate time-period is entitled to acquire
a route to citizenship.
Stateless persons
A stateless person is any person who is not legally counted as a national by any state
through its nationality legislation or constitution (there are currently estimated to be
about 12 million people8 in this condition though estimation is unsurprisingly difficult in
respect of this class of persons). Stateless persons who are present on the territory of a
state are recognized as occupying an acutely vulnerable condition since they have no right
to diplomatic protection or right to return or right to pass on a nationality in respect of a
state of nationality. This puts them in the position of being almost wholly dependent of
the protection and good will of the state in which they are resident. It is, in part for this
reason, that international law recognises the right to a nationality as a basic human right
(UNDHR Art.15.1, see also 1930 Hague Convention on Nationality, and 1954 and 1961
UN Statelessness Conventions) and, thereby, establishes a duty of states to facilitate the
naturalization of stateless persons. From a liberal egalitarian standpoint, the condition of
statelessness grounds a general duty on states to naturalise stateless person’s resident on
their territory. Thus, stateless residents are entitled to a route to national citizenship. The
real issue here is whether, given their vulnerability and the manifold disadvantages of
lacking any national citizenship (for example, lacking a passport), there are compelling
reasons to provide accelerated access to national citizenship compared to the time-period
required of the permanent resident. Consider three possible policies: (i) conferring
citizenship in the state of residence without a time-threshold and supporting these
‘immediate’ citizens through a post-naturalisation integration regime, (ii) lowering the
time-threshold for naturalisation combined with more intensive support for integration
and special protections (including a ‘surrogate’ passport) while they are below this timethreshold and (iii) maintaining the same time-threshold as applies to permanent residents,
providing continuous support for integration across this period (including relevant
identity documentation) but also establishing an special institution within the state (for
example, an Ombudsman for Stateless Persons) which actively protects and represents
their interests. Although I think that (ii) is the most sensible practical policy in terms of
respecting the claims of stateless persons and of the democratic community, it is the case
that, independent of normatively relevant empirical evidence, any of these options would
meet the basic normative requirements. What is ruled out by justice is maintaining
stateless persons in a condition which denies them access to citizenship in the state of
residence for any time-period longer than applies to permanent residents.
Refugees and ‘forced’ migrants
This category of lawful residents encompasses asylum seekers who are authorised to
remain with the state of refuge, whether or not they are recognised as meeting the
national interpretation of the 1951 Convention criteria governing the attribution of
‘Convention refugee’ status. In contrast to other types of resident non-citizens, the state
is under a general obligation to admit prima facie plausible asylum seekers who present
themselves at the borders of the state in order to determine whether they qualify for
refugee status. If they do so qualify, the principle of non-refoulement entails that the state
cannot return them to their state of persecution and, in general, established state practice
has been to grant them lawful residence within, and a form of ‘surrogate membership’ of,
the state. If they do not so qualify, the state may choose to deport them or to grant them
a distinct status than that of Convention refugee which, nevertheless, permits them to
reside lawfully in the state.
In both cases, it should be noted, the right to remain is not a right to permanent
residence but rather a right to reside for whatever period is required to secure protection
from persecution or, in the case of non-Convention refugees, the danger that
underwrites the right to remain. The question that arises is whether, after a certain period,
refugees can legitimately claim a general entitlement to citizenship.
Consider, first, that the residence of the refugee on the territory of the state does not
represent a voluntary choice on the part of the state, but the discharging of an obligation
in international law. This has one significant consequence in terms of civic
marginalisation, namely, that the duty of non-refoulement that states rightly incur in
respect of refugees provides less legitimate scope for returning a migrant to their home
state than is the case for ‘voluntary’ migrants that the state has chosen to admit. Second,
in contrast to habitually resident non-citizens, refugees are de facto unable to exercise their
right to diplomatic protection and their right of return. In this respect, refugees are
relevantly analogous to stateless persons, a relation which prima facie supports similar
conclusions concerning the provision of a (potentially accelerated) route to citizenship.
In the cases of both stateless persons and refugees, the state of residence stands in loco
civitatis and must reflect this standing in its treatment of their claims. Third, the refugee’s
relation to the society in which they now reside is characterised by an indeterminate timehorizon, neither open-ended like the habitual resident nor with a specified endpoint like
the short-term worker, in that they may be subject to (and indeed desire to) return if the
relevant conditions entitling them to refugee status cease to pertain at some future point
in time. This is an extremely difficult position to occupy because it means that the
refugee is situated in a condition of social and civic limbo, unable to commit to building
a new life because they may be returned to the old, unable to commit to the old life
because they may never be able to take it up once more. This consideration strongly
supports the view that the state of residence has a duty to provide a determinate path to
national citizenship for refugees whose status persists beyond some specified timethreshold. Taken together, these features of the refugee require that a route to national
citizenship is available and suggest that an accelerated path to citizenship would be a
reasonable option to adopt, even if the state’s duty of care might be met in ways that
don’t require this.
Irregular Migrants
Irregular migrants are persons who currently reside on the territory of the state while
lacking authorisation to do so. Are such migrants entitled to a route to citizenship?
Consider here the distinction that we have drawn between habitual and short-term
residents which I have argued can ground differences in their access to citizenship.
Bearing this distinction in mind, we can consider an acute point made by David Miller:
How should the contrast apply in the case of irregular migrants? The answer
is that we simply do not know … The very fact that somebody is an
unauthorized migrant means that we cannot draw the usual distinctions between
a person who is admitted on a short-term visa to work for a certain period and a
person who is legally accepted as a long-term immigrant in the expectation that
he or she will in due course set out on ‘‘the path to citizenship’’ … (2008a: 196)
Miller develops two further points from this reflection. First, the rights, other than
human rights, of irregular migrants will depend on how actively and successful the state
tracks them down. Second, ‘horizontal equity’ between irregular and temporary migrants
must be respected (2008a: 196-7). There is a relatively straightforward way of
accommodating Miller’s concerns, namely, to argue that there is no requirement on states
to provide a route to citizenship for irregular migrants until they have satisfied a period
of residence equivalent to the norm for lawfully resident non-citizens and, then, to
discount their prior residence either entirely or, at least, at a rate of discount higher than
that which applies to the short-term worker who also meets this time-threshold. Notice
that such a view is compatible with the state choosing to provide regular amnesties
within shorter time-periods for irregular migrants that allow them to regularise their
status on terms broadly equivalent (although not identical) to those of short-term
workers.
Although such a view would meet Miller’s immediate concerns, grounding it requires that
there are reasons to adopt such a policy rather than simply holding that irregular migrants
should have no route to citizenship. To provide such an argument involves attending to
two points. The first simply draws attention to the fact that the presence of irregular
migrants and, more specifically, long-term residents who are irregular migrants is both
unavoidable and a problem for democratic states as forms of polity committed to the
view that those who are subject to the law should have a say in the nature of the law to
which they are subject. Consequently, the state has a choice between either allowing
conditions under which irregular migrants can regularise their status and, thereby, acquire
a route to citizenship or compromising what is arguably its deepest normative
commitment. The second point notes that even if the irregular migrant’s presence is not
authorised, the fact that long-term irregular migrants choose to centre their lives in this
society retains normative significance in that it is typically the case that such irregular
migrants become embedded members of society who also contribute to it. It might be
objected to this second point that its force is negated because the continuing presence of
the long-term irregular migrant represents the perpetuation of the violation of the right
of the state to determine whether this person is entitled to reside on its territory. But we
should note that it ‘is widely believed that some rights are capable of ‘fading’ in their
moral importance by virtue of the passage of time and by the sheer persistence of what
was originally wrongful infringement.’ (Waldron, 1992: 15) The pertinent question is,
consequently, whether the right to determine whether the long-term irregular migrant is
entitled to remain in the state is one such right. There are two reasons to suggest that it is,
and so should be subject to a ‘statute of limitations’. The first is that the harm to the
individual of being deported after long-term residence and having acquired the attendant
social attachments is significantly greater than any harm done to society in allowing this
individual to remain. This argument is, however, open to the objection that although this
may be true for each case taken singly, it leaves aside the general harm of irregular
migration to the state as a legal and political order. The more important reason is the
second, namely that the legitimate expectations of other ‘regular’ members of society
whose life-plans centrally involve the presence of the long-term irregular migrant will
also be frustrated by the act of deporting this migrant. This reason, in my view, justifies
the establishment of a cut-off point beyond which the irregular migrant can regularise
their status and, hence, acquire a route to citizenship.
II
Having addressed the issue of routes to citizenship, we are now in a position to turn to
the question of the rights and duties that compose the relevant relationships between
states and types of migrant in the light of their relationship to citizenship. I start again
with the figure of the habitually resident non-citizen.
Permanent and ‘not-yet-permanent’ Residents
Carens (2005) has argued that permanent residents should be broadly entitled to all the
rights – and, I would add, duties - that citizens enjoy with the exception of the right to
vote in national elections and stand for public office.9 The argument has two steps. The
first asserts the basic principle that differential treatment of those subject to the legal
authority of the state requires justification (2005: 33). The second step then argues that
differential treatment is not justified in the case of permanent residents on the basis of
their social membership: ‘Living in a society on an ongoing basis makes one a member of
that society.’ (2005: 33) From a rather different position and on somewhat different
grounds, David Miller concurs, arguing that the justification for granting rights of
citizenship ‘to certain categories of immigrants who do not yet hold formal citizenship
status is that they are citizens in the making, so to speak.’ (2008a: 195). However, notice
that both of these arguments effectively lump together resident non-citizens who have
been granted the status of ‘permanent resident’ and habitually resident migrants who
have not acquired that status. I want to suggest that we can differentiate between these
classes of habitual migrant, not least on the basis that applying for permanent residency
makes explicit one’s commitment to long-term residence in the society. If permanent
residents should enjoy broadly the same rights and duties as citizens, what differences are
justified in treating the class of habitual but ‘not yet permanent’ residents?10 This matters
since this class of resident non-citizens as presumptively ‘permanent residents in the
making’ are not in the same position as short-term contract workers or students whose
projects are tied to specific endpoints. What rights, then, should this class of ‘not-yetpermanent’ resident non-citizens enjoy?
Notice that the same reasoning that supports treating permanent residents as ‘citizens in
the making’ supports seeing this class of resident non-citizens as ‘permanent residents in
the making’ and, hence, as broadly equipping them with the legal rights – civil, social and
economic – that enable them to integrate into society and the legal duties that are
required of permanent residents such as paying tax and contributing to work-based
welfare and pension programmes as well as the legal duties that are required of anyone
present on the state (for example, tourists) such as abiding by the law. There are,
however, two significant differences between this class of resident non-citizens and
permanent residents.
First, ‘not-yet-permanent’ residents who choose to leave the state before becoming
permanent residents should be able to be compensated for the contributions that they
have made to state-based pension schemes but from which they will not be able to
benefit. By contrast, permanent residents who choose to leave the state should be treated
in the same way as citizens who live abroad with respect to state-based pension schemes
and, similarly, enjoy a right to return to the state of ‘permanent residence’ for a period at
least equivalent to that required to attain permanent residency. In other words, the
presumption that a permanent resident is a ‘citizen in the making’ is not straightforwardly
defeated by the fact that this resident leaves the state, rather it is sustained unless and
until they have not returned with the relevant time-period.
Second, ‘not-yet-permanent’ residents have no entitlement to some rights of political
participation (such as the right to hold office in the organisation of national political
parties) to which permanent residents are entitled as ‘citizens in the making’. This
limitation on the political rights of ‘not-yet-permanent’ residents places an additional
burden of responsibility on the state to ensure that resident non-citizens who have not
achieved the status of ‘permanent resident’ are not subject to abuse or exploitation. Thus,
while ‘not-yet-permanent’ migrants should enjoy most of the rights and duties
characteristic of permanent residents, there are some respects in which their rights can
legitimately be differentiated from those of permanent residents and such differentiation
affects the duties of the state towards them.
Stateless persons, refugees and ‘forced’ migrants permitted to remain
Stateless persons fall into the same class as permanent residents, while refugees and
forced migrants are best placed in the same class as ‘not-yet permanent’ residents. This
distinction is based on the fact that refugees and forced migrants may legitimately be
required to return to their home state if the conditions that generate their status cease to
apply within a given time-period. The key normative difference between stateless persons,
refugees and ‘forced’ migrants compared to other lawful residents is that these migrants
don’t enjoy an effective right to diplomatic protection by, or right to return to, another
state and hence, the state of residence stands in loco civitatis. As such, the state has special
duties to ensure their protection from abuse or exploitation. Notice that since refugees
and ‘forced’ migrants may legitimately be required to return to their states if the relevant
conditions have changed within the salient time-period, the state of refuge has a special
duty to ensure that this class of migrant should have access to resources that support
them through the difficulties that attend the condition of ‘social and civic limbo’ in which
they find themselves.
Short-term/temporary contract workers and students
In relation to short-term contract workers, Carens has argued that ‘temporary workers
should receive most of the economic and social rights that citizens and residents enjoy’
(2008a: 430). In stark contrast David Miller has suggested that while the human rights of
temporary workers must be protected, ‘beyond that, [the position of temporary migrants]
is better understood in contractual terms: what rights they get should depend on what
agreements they have made (or are in place) before they enter.’ (2008a: 196) Neither of
these positions seems altogether satisfactory. On the one hand, Carens’ argument seems
to remove any normative distinction between short-term contract workers and ‘not-yetpermanent’ residents, and in so doing underestimates, as Miller does not, that an
important range of civic obligations cannot reasonably be imposed on short-term
contract workers. On the other hand, Miller’s position underestimates the potential for
exploitation in contracts to which parties in highly asymmetric power relations mutually
consent. A more reasonable stance acknowledges that short-term contract workers need
not be required to pay income tax or into work-related pension schemes but, equally, that
the state has a duty to regulate the contracts that can be agreed to ensure that fair
remuneration, health and welfare protections, and the like are included with its terms.
The point here is that since, with a few exceptions, the use of short-term contract
workers is not a routinely required feature of the economy of the state and its
consequences for the wider population may be ambivalent, the costs should lie largely on
the employers (unless some clear public interest is involved).
These remarks do not, however, bear on a central issue raised by Carens, namely,
whether a short-term contract worker should have the right to change employer or,
indeed, the sector of the economy in which their initial job is situated. In respect of the
first issue, Carens’ argument is that the restriction is not justified on the grounds that it
enables exploitation; at best, acknowledgment of the employer’s investment in
recruitment ‘would only justify a limited period during which the migrant could
legitimately be tied to a particular employer’ and even here there should be an escape
clause for abusive behaviour (2008a: 431), where, I’d add, the employer should be liable
for penalties that fund the search for new employment opportunities of a
commensurately desirable kind to the original offer or, in the absence of such
opportunities, compensate the migrant for the varied costs of their relocation. The state
in regulating contracts can make accommodation for this practice.
What of the case of the migrant being able to move to a different sector of employment?
Carens’ argument for this right is that its absence ‘forces foreign temporary workers to
perform tasks for wages that are lower than they could command if they were free to
compete on the entire labour market.’ (2008a: 432) But is this the relevant counterfactual? An alternative formulation would hold that offering entry for a restricted sector
is expanding the labour market options available to the migrant by adding one to the
options available in the state of origin and typically one that enables the worker to
perform tasks for wages that are higher than they could command on the entire labour
market of the home state. The problem here concerns identifying the relevant counter-
factual without appealing to broader considerations of global justice and the legitimacy of
state practice. Given this methodological commitment, it seems more plausible to argue
that the state has a regulatory duty of care towards those migrants that it admits on such
restricted terms to ensure that they are paid a fair wage for the work that they perform.
While it is true that what such a fair wage would amount to cannot be given any
determinacy independent of broader considerations of justice, this position does allow
for a coherent normative stance within the terms of the methodological commitments I
have adopted even as it raises and points to the limitations of these commitments.
Irregular Migrants
The difficulty posed by the case of irregular migrants concerns, first, the rights to which
they should be entitled, despite not being authorised to be resident in the territory of the
state, and, second, the effects of their lack of authorisation to residence on their effective
enjoyment of these rights.
To address these issues, we can begin by re-iterating that irregular migrants are entitled to
human rights. The problem that arises in relation to the enjoyment of such rights on the
part of irregular migrants, which has been treated in depth by Bosniak (2006), is that their
possession of these rights is effectively quashed by the fear that exercising them will draw
their migration status to the attention of state authorities. As Carens notes: ‘This creates a
serious normative problem for democratic states. It makes no moral sense to provide
people with purely formal legal rights under conditions that make it impossible for them
to exercise those rights effectively.’ (2008b: 167)
One response to this situation is Carens’ suggestion to adopt a firewall policy which draws
a line between enforcing immigration law and protecting basic human rights: ‘We ought
to establish as a firm legal principle that no information gathered by those responsible
for protecting and realizing basic human rights can be used for immigration enforcement
purposes.’ (2008b: 167) The point of a firewall is to protect the rights to which irregular
migrants are entitled and to protect them insofar as they act civically in reporting
breaches, or suspected breaches, of state law.11
But note Caren’s claim: ‘It makes no moral sense to provide people with purely formal
legal rights under conditions that make it impossible for them to exercise those rights
effectively.’ This claim is, I think, a slight mis-statement since, even under conditions in
which irregular migrants can be reported to the border police when going to hospital or
reporting a crime, this does not make it impossible to exercise the right effectively or (as
might also be intended) effectively impossible to exercise the right. Rather it makes
effective exercise of the right unreasonably costly in terms of the consequences that can
lawfully follow from such exercise. In respect of human rights, this reformulation has the
same consequences for Carens’ argument, but it is less clear that it retains this
consequence if a firewall policy is extended to a range of civic rights as Carens argues it
should be. Thus, for example, Carens’ goes on to address work-related rights as well as
social and administrative rights, arguing that the irregular migrants should enjoy a
considerable range of these rights where effective enjoyment of them requires the
extension of the firewall argument. But we should pause here to note that Carens’
argument, like my own, is operating with the methodological strategy of assuming that
the state has a basic right to control who enters and resides within its borders. This being
the case, it follows that it is also morally nonsensical for the state to have a formal right
to control its borders under conditions that make it unreasonably costly for the state to
exercise this right effectively. In the case of human rights, we accept that it as a function
of these rights that they place constraints on how the state can pursue its projects; the
firewall policies needed to ensure that irregular migrants can exercise basic human rights
are justified even if they present significant problems for a state’s pursuit of its legitimate
border policies. But the same point does not straightforwardly extend to civic rights
which also raise the costs of the state’s exercise of its rights in respect of border policies
if these costs are unreasonable in that either they make it impracticable for a state to
pursue its legitimate border policies or entail that a state can only practicably pursue its
border policies by increasing its powers – for example, powers of surveillance – in ways
that reduce the overall civil liberty of all persons resident on the territory of the state.
Once we recognise this consequence of the internal structure of Carens’ argument, we
confront a fundamental issue, namely, the determination of what counts as unreasonable
burdens on the state’s exercise of its right of border control in relation to what count as
unreasonable burdens on the rights of irregular migrant’s. An adequate response to this
question is beyond the scope of this essay and highlights another point at which the
limitations of the methodological choices that I have adopted act to focus our attention
on, to foreground, norms that have been placed in the background for the sake of this
inquiry. The key point in relation to this essay is that we simply cannot specify what the
scope of effective, rather than formal, civic rights for irregular migrants should be if we
hold fixed the norm that state’s should enjoy a right to control entry to, and residence on,
their territory.
Conclusion
The substantive claims that this argument has attempted to establish can be summarised
as four claims. First, it makes a normatively consequential difference whether a given
class of migrants has a clear route to citizenship which means essentially whether they
have a clear route to permanent resident status. If it is the case either that they do not
have access to such a route or that they lack a nationality or that they possess a
nationality but effectively lack the rights to which it would normally entitle them, then
the state has an additional duty of care toward the type of migrant in question where the
nature and scope of that duty is dependent on the specific form of civic marginalisation
characteristic of the relevant class of migrants. Second, habitual residents, (more or less)
serial short-term contract workers (or students), stateless persons, refugees and long-term
irregular migrants should all enjoy a route to national citizenship. Third, human rights
should be available to all migrants on reasonable terms of exercise even if this
significantly constrains the range of legitimate policies through which the
(methodologically presumed) right of the state to control its own border regime can be
exercised. Fourth, socio-economic rights should be broadly available to migrants other
than first-time short-term workers who are exempt from a duty to contribute to the state
and possibly also irregular migrants although this is indeterminate within the selfimposed methodological limits of this essay. However, I have also sought to draw
attention to the way in which the methodological choices that I have adopted can bring
to light points at which background norms which are taken, for the purposes of
argument, as justified can be thrust into the foreground in ways that require a fuller
account of global justice to reflect on their legitimacy.
David Owen
Politics and International Relations/Centre for Citizenship, Globalization and
Governance
School of Social Sciences
University of Southampton
Southampton SO17 1BJ
dowen@soton.ac.uk
Acknowledgments
I am grateful to Jonathan Seglow and Phillip Cook for their organisation of the
conference The Margins of Citizenship at which an earlier draft of this paper was presented
and for their detailed comments as well as to the other participants for very helpful
discussion. Some elements of this essay were also trialled at a conference Non-citizens in
liberal democracies – republican and liberal perspectives at the University of Wales, Newport
organised by Marit Hovdal Moan and I owe thanks to Marit as well as Iseult Honohan,
Chris Bertram, Megan Benton, Phillip Cole, Enzo Rossi, Stuart White and Jules Holroyd
for stimulating discussion. Thanks are also owed to my colleagues Andy Mason and
Chris Armstrong as well as to Rainer Baubock and Joe Carens for discussion of the
arguments that I offer here.
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1
The methodological reflections and choices of this essay are deeply indebted to the examples and
work of Rainer Baubock and Joe Carens.
2
There is a further limitation which I also adopt in this essay largely for reasons of space given the
range that I am attempting to cover which is that I focus on 1 st generation adult migrants and not on the
case of children. This case in its various dimensions is well covered by Carens (2005, 2008a and
2008b). Partly for this reason I also leave aside family reunion migration. For an illuminating analysis
of this topic, see Honohan (2009).
3
For an excellent analysis of the place of this claim in Walzer’s theory, see Bosniak (2006).
4
This point is also central to Rogers Smith (2008) in his argument for the closely related ‘principle of
constituted identities’ and is similarly stressed by Carens (2005) in relation to children.
5
Notice, however, that Miller is very careful to limit the potential scope of citizenship tests to exclude
cultural issues that don’t directly relate to citizenship and he is also very clear on the social, cultural
and political obligations owed by the state to new immigrants and new immigrant communities (2008b:
380-88).
6
We might note that the provision of braille newspapers, of subtitled and signed news programmes as
well as increasingly good translation software and global news media already play a significant role in
lowering the costs of acquiring political knowledge and engaging in effective civic participation for a
range of traditionally marginalised groups.
7
In this essay, for purposes of simplification, I am leaving aside complexities concerning, for example,
the option of distinguishing between ‘political membership’ and ‘national citizenship’ which I address
elsewhere (Owen 2011).
8
Figures from UNHCR accessed at: http://www.unhcr.org/pages/49c3646c26.html on 30/11/11.
9
Carens does not mention the right to pass on the nationality of the state, presumably because he also
argues that children born in, or residing in, a state to have a right to nationality of that state nor does he
address external citizenship rights in this context.
10
Nor do they specify whether the status of permanent resident should be a voluntary or mandatory
status, an issue that I will also suspend for this discussion.
11
Notice though that a firewall policy fits some human rights better than others. Consider the basic
human right of freedom of expression. This right may be thought particularly significant since freedom
of speech is basic to the public articulation of claims of injustice. Suppose, then, that an irregular
migrant wants to exercise this right to draw attention to abuses of the basic human rights of irregular
migrants. This requires public speech and it may matter to the credibility and effectiveness of the
testimony offered that the speaker is identified as an irregular migrant. To some extent, this problem
may be addressed in this type of case by the use of anonymity strategies in the media (face and voice
disguise) combined with credible testimony by the journalist of the irregular status of the speaker,
however, even if this protects the right of freedom of speech, it limits the available forms of its exercise.
The significance of this point is that it draws attention to the point that we can be said to enjoy human
rights more or less fully depending on the range of ways available to us to exercise such rights. In the
case of freedom of speech (and related considerations will apply to rights of assembly and protest), the
implication is that irregular migrants enjoy a less expansive practical form of this right than other
residents of the state and, hence, even when protected by a firewall policy occupy a more marginal
position with respect to the civic exercise of rights.